Wakilii

Okia v Byekwaso & Another (Civil Appeal 10 of 2023)

High Court · [2024] UGHCFD 43 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court dismissal of application to appoint administrators ad litem for execution purposes
Decision
Appeal partly allowed; appellant directed to seek execution against general administrators or personal representatives with powers to deal with the deceased's estate rather than administrators ad litem

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an appeal from dismissal of an application to appoint administrators ad litem was competent without leave, as the order conclusively determined the matter and was therefore a decree appealable as of right. The court allowed the appeal in part, holding that respondents who had already been appointed administrators ad litem in a related suit remained such unless cancelled by legal process, but that their limited administration did not permit execution and the appellant must proceed against general administrators or personal representatives with powers to deal with the deceased's estate.

Outcome

Appeal partly allowed; appellant directed to seek execution against general administrators or personal representatives with powers to deal with the deceased's estate rather than administrators ad litem

Facts

The appellant obtained judgment in Civil Suit No. 57 of 2013 against Miti Paul, who died on 25 October 2018 before the decree could be executed. The appellant filed Miscellaneous Application No. 142 of 2021 seeking appointment of the respondents, biological children of the deceased, as administrators ad litem of their father's estate for purposes of execution. The respondents objected on the ground that they were unwilling to be appointed. The trial magistrate dismissed the application on the ground that there was no evidence that persons entitled to administer the estate were unable or unwilling to act. The respondents had previously been appointed administrators ad litem of the same estate in Civil Suit No. 58 of 2013 following their own application for such appointment in Miscellaneous Application No. 136 of 2018.

Issues

  1. Whether the appeal was competent without leave of court to file the same.
  2. Whether the learned trial magistrate erred in holding that there was no evidence that persons entitled to administer the deceased's estate were unable or unwilling to act as such.
  3. Whether the learned trial magistrate erred in dismissing Miscellaneous Application No. 142 of 2021.

Orders

  • Appeal allowed in part.
  • Preliminary objection dismissed.
  • The administration ad litem of the estate of the late Miti Paul by the respondents in Civil Suit No. 58 of 2013 stands unless cancelled, terminated or varied by appropriate legal process or when the suit terminates.
  • Since administration ad litem does not give general powers of administration to enable execution, the appellant is entitled to execution against the administrators of the estate of the late Miti Paul, if any, or in the alternative his personal representative with powers to deal with his estate.
  • Costs in this appeal awarded to the respondents.
  • Each party to bear their own costs in Miscellaneous Application No. 142 of 2021.

Rules and key headnotes

Civil Procedure — Appeals — Appealability without leave — Distinction between decree and order
Where a ruling in an interlocutory application has the effect of conclusively determining the matter between the parties such that no further proceedings can continue, the ruling constitutes a decree within Section 2(c) of the Civil Procedure Act and is appealable as of right without leave under Section 66, notwithstanding that it was made in an interlocutory application.
Civil Procedure — Statutory interpretation — Principal legislation and subsidiary legislation
In interpreting provisions on appealability, the Civil Procedure Act as principal legislation takes precedence over the Civil Procedure Rules as subsidiary legislation, and where Section 2(c) defines a decree as including determinations under Section 34, such determinations are appealable as decrees under Section 66 regardless of the categorisation in Order 44 of the Civil Procedure Rules.
Succession & Estates — Administration ad litem — Scope and continuation after initial appointment
Where administrators ad litem are appointed to represent a deceased person's estate in pending proceedings and fail to obtain a specific order limiting the administratorship to the original suit only, the appointment continues to apply to further court processes arising from that suit, including execution proceedings, unless and until the administratorship is cancelled, terminated or varied by appropriate legal process or the suit terminates.
Succession & Estates — Administration ad litem — Limited nature — Powers of administration
Administration ad litem is limited to defending the suit or providing a party who may sue or be sued on behalf of the deceased, and does not confer general powers of administration including power to distribute the estate; consequently, execution cannot be levied against administrators ad litem as they lack power to apportion estate assets towards meeting execution costs.
Succession & Estates — Administration ad litem — Appointment under Succession Act s.222 — Consent of nominee
Section 222 of the Succession Act does not require the consent or willingness of a nominee for letters of administration ad litem to be granted where it is necessary for the representative of a deceased person to be made a party to pending proceedings and the executor or person entitled to administration is unable or unwilling to act.
Civil Procedure — Execution — Parties against whom execution may be levied
A judgment creditor seeking to execute a decree against a deceased judgment debtor must proceed against the general administrators of the estate with powers to deal with the estate, or in the alternative the deceased's personal representative with such powers, and not against administrators ad litem whose powers are limited to representation in litigation.

Legislation cited (14)

Cases cited (9)

  • Fr. Narsensio Begumisa and 3 others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Selle Vs Assoc. Motor Boat Co. [1968] EA 123 at 126
  • Samuel Karekyezi v The Registered Trustees of Church of Uganda (High Court Civil Appeal No. 17 of 2011)
  • Dr. Sheik Ahmed Mohammed Kisuule v Green Land Bank (in Liquidation) (Supreme Court Civil Application No. 07 of 2010)
  • Sanyu Lwanga Musoke v Sam Galiwango (Supreme Court Civil Appeal No. 48 of 1995)
  • Hwan Sung Limited v M.D Timber Merchants and Transporter (Civil Appeal No. 02 of 2018)
  • Byomuhangi Christopher v Rugumya James (High Court Miscellaneous Application No. 057 of 2023)
  • Winrose Emmah NdindaKlamba Vs Agnes Nthambi Kasyoka [2021] eKLR
  • In The Matter Of The Estate Of Mary Moore [2023] IEHC 607

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Okia v Byekwaso & Another (Civil Appeal 10 of 2023) [2024] UGHCFD 43 (28 May 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.